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Rabindra Kumar Dey V State of Orissa
Rabindra Kumar Dey V State of Orissa
Rabindra Kumar Dey V State of Orissa
PETITIONER:
RABINDRA KUMAR DEY
Vs.
RESPONDENT:
STATE OF ORISSA
DATE OF JUDGMENT31/08/1976
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
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BHAGWATI, P.N.
CITATION:
1977 AIR 170 1977 SCR (1) 439
1976 SCC (4) 233
CITATOR INFO :
RF 1991 SC1853 (6)
ACT:
Prevention of Corruption Act, 1947--Sec. 5(1)(c) and
5(1)(d) r/w Sec. 5(2)--Misappropriating Govt. Funds--Re-
taining Govt. Funds by a Govt. servant--Evidence Act.
Sec. 154--When can a witness be declared hostile--Can evi-
dence of a hostile witness be accepted-- Evidence Act Sec.
105--onus of proving exceptions in I.P.C. on
accused---Degree of proof--Criminal Trial-Effect of non
examination of material witness--Conviction on evidence of
a solitary witness--Whether adverse inference can be drawn
against accused for not leading evidence--Onus of prosecu-
tion--Presumption of innocence.
HEADNOTE:
The appellant ,who was the Additional District Magis-
trate in overall charge ,of the Nizarat and the Land Acqui-
sition sections of the Collectorate was charged for criminal
misconduct under section 5(2) read with section 5(1)(c) and
5(1 ) (d) of the Prevention of Corruption Act, 1947. The
allegation against the appellant was that he withdrew a sum
of Rs. 10,000/- on 9-1-1965 on the ground that he wanted to
distribute the said amount amongst the villagers whose land
was acquired as the compensation; that in fact the appellant
never wanted to distribute the said amount and that he
retained,the money with him for about 6 months dishonestly
and only after that the money was deposited in the Treasury.
The defence of the appellant was that the Secretary of the
Works Department called a meeting in the Secretariat on
25-9-1964- and that the appellant was expressly directed to
proceed to the spot and persuade the villagers to accept the
compensation money; that it was pursuant to that mandate
that the appellant withdrew the money on 9-1-1965; that he
could not go to the village in question in that day because
one of the officers who was to accompany him was not avail-
able; that he, therefore, again deposited the money back
with the Nazir and collected the money from him again on
20-1-1975; that he went there along with several officials;
that the villagers, however, refused to accept the compensa-
tion. The appellant was, however, hopeful of getting the
compensation increased and to persuade the villagers to
SUPREME COURT OF INDIA Page 2 of 19
accept the increased compensation. He, therefore, on his
return handed over the money to the Nazir, however, asked
him not to deposit the same in the Treasury so that cash
would be readily available as soon as needed.
Nazir was examined by the prosecution and he denied
having received the money as suggested by the appellant.
Secretary of the Works Department was not examined by the
prosecution. The Land Acquisition Officer PW 8 deposed that
the Secretary directed the appellant to take action for
payment of the compensation money to the villagers and that
the appellant should personally persuade the villagers to
accept the compensation. The said witness was, however,
declared hostile on the ground that he did not state to the
Police that when the appellant and the Executive Engineer
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JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 193
of 1971.
Appeal by Special Leave from the Judgment and Order
dated 11-5-71 of the Orissa High Court in Criminal Appeal
No. 14/70.
Gobind Das, Mrs. Sunanda Bhandare, ,A. K. Mathur, A.
K. Sharma and M.S. Bhandare, for the Appellant.
S.C. Agarwal and G.S. Chatterjee, for the Respondent.
The Judgment of the Court was delivered
FAZAL ALl, J. In this appeal by special leave, the
appellant has been convicted for criminal misconduct under
s.5(2) read with S.5(1) (c) of the Prevention of Corruption
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cused. But as
455
the witness has made inconsistent statements which sometimes
go to support the prosecution and sometimes the accused and
is further, contradicted by his own tour diary and T.A.
Bills, we do not choose any reliance on the evidence of this
witness.
The next and the last question that falls for determina-
tion is as to whether or not the accused after returning
from Balichandrapur handed over the money to the Nazir. It
may be mentioned that the appellant had made no secret of
the fact that after returning the money to the Nazir he had
instructed him not to deposit the same in the treasury but
to keep it out of cash for the reason which we have already
indicated. In this connection we have only the word of P.W.
1 the Nazir as against the word of the appellant. The Nazir
also does not appear to be a witness who is completely above
suspicion. Crossexamination of this witness clearly re-
vealed that the manner in which he had kept the accounts was
not at all satisfactory and he was in the habit of allowing
huge amounts to remain with him without depositing them in
the treasury and that he was also building a house for which
he had taken some loans.. Instead of applying a very strict
standard to test the testimony of such a witness, the High
Court seems to have explained the irregularities committed
by the Nazir P.W. 1 thus:
"Heavy cash remaining with the Nazir that
Ext. D discloses and the facts of the Nazir having
secured housebuilding advance during September 1965
may raise speculations and surmises against the
Nazir."
There are, however, important circumstances to indicate
that the explanation given by the appellant is both probable
and reasonable. P.W. 9 who was the Nizarat Officer and who
had not been declared hostile (emphasis ours) has clearly
stated that the amount was taken by the appellant for dis-
bursement. The witness further deposes that in March 1965
he had a discussion with the appellant regarding the amount
of Rs. 10,000/- taken by him and the appellant had then told
him that the amount could not be disbursed as the tenants
did not agree to take the amounts and that he had kept the
amount with the Nazir. In this connection his statement is
as follows:
"In March, 1965, I had a discussion with the
accused regarding the amount of Rs. 10,000/- taken
by him and the accused then told me that the amount
could not be disbursed as the tenants did not agree
to take the amounts and that he had kept the amount
with the Nazir. I did not make any enquiry from
the Nazir regarding this as the balance amount as
shown in the cash Book was the same in the cash
SUPREME COURT OF INDIA Page 17 of 19
sheet. The accused had told me that the Nazir had
kept the amount of Rs. 10,000/- outside the cash as
per his instructions."
It is, therefore, clear from the admission made by this
witness that the case of the accused t,hat he had given
money to the Nazir is fully supported by him because he has
referred to the statement made to him by the appellant as
far back as March 1965 when there was absolutely no dispute,
no inquiry and no allegation of misappropriation against the
appellant. Much was made by the learned counsel for the
13--1104SCI/76
456
State out of the fact that the accused had directed the
Nazir to keep the amount outside the cash which betrayed the
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